At the ICTY an accused can usually expect a long period of provisional detention
and a short sentence following conviction. It was thought that the ECCC might be heading the
same way when they handed down a sentence of 35 years to Tuol Sleng's
commander, Kaing Guek Eav, alias "Duch," in 2010 (see Trial Judgement). This sentence
was further diminished by a 5 year deduction that the Trial Chamber awarded in
recognition of the unlawfulness of his continued provisional detention by
Cambodian military commission (MC) from 1999-2007. Now, in light of the Supreme Court Chamber's (SCC) judgement, the summary of which was
issued on 3 February 2012, it looks like maybe the ECCC is headed in a
slightly difference direction.
The Prosecution called Tuol Sleng a "factory of
death" and the SCC agreed. It sentenced Duch to life
imprisonment (See Summary of the Judgement) for
what it described as being "among the worst in recorded human
history." A bit flowery, perhaps, but it is difficult to argue that
a person found guilty of those crimes does not deserve life imprisonment, is it
not?
The increase in Duch’s sentence
might actually make a practical difference, as he would have been
about 87 years old by the time he had finished serving 100% of the 30 years
ordered by the Trial Chamber. Less likely to make a difference to the
accused – now that he has been sentenced to life - is the majority of the SCC determining that,
contrary to the Trial Chamber's opinion, Duch was not entitled either to time served on
account of being held in military detention from 1999-2007 in violation
of Cambodian law, prior to being transferred to ECCC custody, or to the additional 5 year deduction which the
Trial Chamber awarded in recognition of the unlawfulness of his MC detention.
The SCC has identified two reasons for the decision to
quash both remedies in the summary of its judgement:
(1) there were no violations attributable to the ECCC,
and
(2) there had been no abuse of process.
The dissent, on the other hand, points to four factors
in favour of granting Duch a remedy for the unlawful detention imposed on him:
(3) the high integration of the ECCC into the national
Cambodian court system;
(4) the existence of a strong nexus between the
respective charges before each court;
(5) the extremity of the deprivation of
liberty by any standards, and
(6) the court's unique capacity to provide restorative
justice
So, what insight do these nicely enumerated factors give us, who has the stronger argument (does the dissent
protest too much?) and what is this really about? Well, the full
judgement is not available yet but no matter because, as Stan Starygin
indicates, the judgement probably won't help us anyway. In his
blog, ECCC Reparations, Starygin highlights some of the
more awkward questions that he believes the SCC will be keen to obscure in the
judgement:
"was there a
behind-closed-doors agreement between the UN and the RGC to keep Duch and Mok
in detention until the creation of the ECCC could be effected, yes or no? Did
the UN, in any way, allude to the RGC that it would be a good idea not to let
the national courts prosecute Duch and Mok and wait for the ECCC to do so? Yes
or no? Did the UN specifically request that Duch and Mok be detained
pending the creation of the ECCC? What was the role of the
UNHCHR Office in Cambodia in this? What was the role of the UN Legal
Counsel's Office in this?"
The questions Starygin raises concern the issue of “nexus”
which, as I see it, appears to be the fulcrum of the entire debate. But
is the ECCC really an international court, as Starygin seems to suggest, or is it a domestic court (though it is of course a hybrid court on paper). Thus,
are we talking about a nexus between two Cambodian courts, or a nexus between a
Cambodian court and a UN court?
Anne
Heindel of DC-CAM, in her 2009 amicus brief filed in her
personal capacity and arguing for the same side as the dissent, argues that
courts are integrated, leading to the conclusion that what we are really
talking about is a nexus between two Cambodian courts. She points to ECCC's creation under Cambodian law, pursuant to a framework
agreement between the U.N. and Cambodia, to demonstrate that it is highly
integrated into the Cambodian court system. A variety of other aspects of
the agreement reinforce this view, the most striking, perhaps, being the fact
that under the agreement, if the UN withdraws staff and support from the Court, it
may continue to function without the international presence (citing
Establishment law, art. 46).
If the
ECCC is an essentially Cambodian court, then, how can there not be a nexus between it and a
Cambodian military commission set up to try to the same individuals for the
same crimes, and a transfer of the accused from the custody of one to the other?
And if there is no nexus between two courts in the same state trying the same
individuals for the same crimes, can a detainee be passed from court to court
indefinitely without any possible hope of relief, each move perfecting the
abuses of the last?
One assumes then that the majority's position must be
that it is an international court, or at least, sufficiently internationalised
to avoid forming a nexus with the military commission. A slightly
embarrassing concession perhaps, given that the ECCC purport to be chambers in the courts of Cambodia, but
nonetheless.
A ham-fisted attempt to deal with this conundrum was
the Trial Chamber's original pronouncement on the issue, back in 2009 . The Trial Chamber held that, however Duch
ended up in the ECCC's custody, it could not have been by virtue of the
proceedings at the military commission being in any way continued, because the
decision to terminate proceedings in military court was taken nearly a year after he had already been taken into the
ECCC's custody (see TC Decision, para. 13). (Unsurprisingly, the Trial Chamber is also quick to stress the
internationalised aspects of the ECCC (see paras. 10-11).) The Trial Chamber's argument seems to be that the less-than-seamless transition from proceedings in one forum and proceedings in the
other (combined with the internationalised nature of the latter) somehow proves
that there is no nexus; that the two are separate for the purposes of imputing
abuses in one institution to the other.
This is unconvincing. Given the dreadfully slow nature of both Cambodian
and international bureaucracies, it is hardly persuasive to point to something that may well have been the result of nothing more than poor book-keeping in order to prove the non-existence
of a nexus between the two institutions.
The significance of the
non-existence of a nexus is that it allowed the Trial Chamber
to provide a remedy for Duch's unlawful detention without getting its hands
dirty. In the end the Trial Chamber held
that, under the circumstances of the charges being broadly similar, the violation
of his rights being so serious, and the ECCC being well-positioned to do
something about it, they would grant him partial relief, which took the form of a 5 year deduction (see Trial Judgement; TC Decision,
paras. 18-21, and 28). Handily, the Trial Chamber was also able to
conclude that although Duch suffered an egregious violation of his rights, it
wasn't so bad as to render any subsequent attempts to try him on substantially
the same charges an abuse of process. Phew.
What happened at the military commission stays at
military commission, ish. It was the
Cambodian’s fault, and cannot be imputed to the ECCC, which is an internationalised court, says the Trial Chamber. Except that the UN then swoops
in like a fairy godmother and bestows a five year credit on Duch for no other reason
than that it can, essentially. Bit of
an interfering godmother, some might say.
If the UN is really blameless in
all this, then what business is it of theirs really as to what happened at the military commission? Should
international criminal tribunals - which are not supranational courts, and are
not really forums for the resolution of human rights claims either - attempt to
right all the wrongs that occur under domestic law, as the Trial Chamber opted
to do? Does this add to their legitimacy somehow, or does it only add
fuel to the fire of accusations that it is a colonialist-imperialist
institution? It will be interesting to see what, if anything, the full SCC judgement will bring to the debate.
As it happens, my favourite argument in this entire
debate appears not to have made it into the SCC judgement at all. It
came from the Civil Parties' Group 1 back in 2009, who argued that it
would not be in the "interests of the international community" to grant him any
form of supplementary compensation for the violation of his rights since he has
already admitted to committing crimes (see Group 1 Request to Deny Additional
Compensation). This argument delights me because
it is, in effect, saying that once the accused has confessed - regardless of
the voluntariness of the confession, a factor not referenced at all in their Request - we can get on with the punishment right away, without further ado.
If that is all that is required before the accused can start serving his
sentence, then why bother with court nonsense at all? Why not simply set UN torture
camps to extract confessions (since the civil parties are apparently unbothered
by the possibility of involuntariness) then lock him up and throw away the key
once the job is done? (Dear Alain Werner: I know that's not what you meant). At least that would be one - probably just the one - step
up from what they did at Tuol Sleng.
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